IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF AUGUST 2019 BEFORE THE HON’BLE MR. JUSTICE H. T. NARENDRA PRASAD WRIT PETITION No. 27393/2017(LB-RES) AND WRIT PETITION No.28632/2017 BETWEEN:
1. SMT SHANTHAKUMARI W/O.LATE H.D.PRASAD CHAND, AGED ABOUT 53 YEARS, RESIDING AT HOUSE NO.1363, B.B.LAYU ROAD, K.R.MOHALLA, MYSURU-570024.
2. SRI SUNIL BHARATH JAIN S/O LATE. H.D.PRASAD CHAND, AGED ABOUT 35YEARS, RESIDING AT HOUSE NO.1363, B.B.LAYU ROAD, K.R.MOHALLA, MYSURU-570024.
... PETITIONERS (BY SRI. ARUNA SHYAM M., ADV.) AND 1. THE MYSURU URBAN DEVELOPMENT AUTHORITY, JHANSI LAKSHMIBAI ROAD, MYSURU-570005.
REP. BY ITS COMMISSIONER.
2. TOWN PLANNING MEMBER MYSURU URBAN DEVELOPMENT AUTHORITY, JHANSI LAKSHMIBAI ROAD, MYSURU-570005.
3. D B PRAKASH AGED MAJOR, S/O.LATE. P.H.BORAIAH, R/AT D.NO.669/K28, KASHI PATHI AGRAHARA, K.R.MOHALLA, MYSORE-570024.
... RESPONDENTS (BY SRI. VIVEKANANDA T. P., ADV. FOR R1 & 2, SRI.U.VINAY RAGHAVENDRA, ADV. FOR SRI.T.N.RAGHUPATHY, ADV. FOR R3.) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH OF ORDER/DIRECTION DTD:2.9.2015 ISSUED BY THE R-1 THEREBY STAYING THE ORDER OF MERGING TWO SITES INTO SINGLE SITE AND SKETCH WHCIH IS PRODUCED AS ANNEXURE-A AND ALL FURTHER PROCEEDINGS PURSUANT THERETO.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R These writ petitions are directed against the order dated 2.9.2015 passed by the respondent No.1 vide Annexure-A.
2. The case of the petitioners is that the petitioners have purchased two sites through registered sale deed dated 30.3.2011 after paying the valuable consideration. On 14.2.2015, they have made a representation to the respondent No.1 seeking for merger of two sites which were purchased by them. Pursuant to their request, the respondent No.1 has sanctioned the plan for merger of two sites. The respondent No.3 herein along with others have given a complaint objecting for merger of two sites. On the basis of the complaint, proceedings has been initiated under Section 76-O of the Karnataka Town and Country Planning Act, 1961 (for short “the Act”) and notice has been issued on 6.8.2015 vide Annexure-G. Pursuant to the notice dated 6.8.2015, the petitioners have submitted the reply on 14.8.2015 vide Annexure- G1. In addition to that, the petitioners have submitted the reply through their counsel on 28.2.2016 vide Annexure-H. The petitioners have furnished all relevant documents along with the representation. The matter is pending before the respondent No.1 for taking a decision under Section 76-O of the said Act. In the meanwhile, they have issued an endorsement suspending the plan issued in favour of the petitioners. Being aggrieved by the same, the petitioners have approached this Court.
3. The learned counsel appearing for the petitioners submitted that the petitioners have filed an application for merger of two sites after paying all necessary fee. After considering the application filed by the petitioners, the plan has been issued in accordance with law vide Annexure-E. Now, on the basis of the complaint filed by the respondent No.3 and others, the proceedings has been initiated. Pursuant to the notice issued by the respondent No.1, the petitioners have submitted the representation along with all relevant records. Before passing the final order on the representation, the impugned order dated 2.9.2015 vide Annexure- A is passed suspending the plan issued in favour of the petitioners, the same is without authority of law. Hence, he sought for allowing the writ petitions.
4. The learned counsel appearing for the respondents submits that pursuant to the complaint filed by the respondent No.3, proceedings has been initiated under Section 76-O of the said Act. In the meanwhile, under the very same provision, the authority has power to suspend the plan issued in favour of the petitioners. Accordingly, by exercising the same power, the impugned order vide Annexure-A has been passed suspending the plan. In respect of the final order is concerned, if reasonable time is granted, the authority after hearing the parties and considering all relevant documents produced, will pass appropriate orders in accordance with law.
5. Heard the learned counsel appearing for the parties.
6. It is not in dispute that the petitioners have purchased two sites by paying valuable consideration and they have filed an application for merger of two sites purchased by them. On their request, respondent No.1 has sanctioned the plan for merger vide Annexure-E. Subsequently, respondent No.3 and others had given complaint to the respondent No.1 against the petitioner objecting for merger of sites. Pursuant to the complaint, the proceedings has been initiated under Section 76-O of Act and notice has been issued to the petitioner vide Annexure-G. Pursuant to the notice, the petitioner has submitted his reply vide Annexures- G1 and H. During the pendency of the consideration of the representation and documents submitted by the parties, the respondent No.1 has exercised the power under Section 76-O of the Act and has suspended the plan issued in favour of the petitioners till disposal of the matter pending before the competent authority. Therefore, the contention of the petitioners that the impugned order is passed without authority of law, is not well founded.
7. Section 76-O of Karnataka Town and Country Planning Act, reads as under:-
“Section 76-OPower of Planning Authority to suspend or revoke permission etc. Planning Authority may suspend or revoke any licence, permission or sanction granted by it if:
(i) the grantee has evaded or committed breach of any of the restrictions or conditions subject to which such licence, permission or sanction was granted; or (ii) the grantee is convicted for contravention of any of the provisions of this Act, or of any rule, bye-law or regulation made thereunder in respect of any matter relating to such licence, permission or sanction, or (iii) the grantee has obtained the licence, permission or sanction by mis- representation or fraud:
Provided that before making any order under this section the Planning Authority shall give the grantee a reasonable opportunity of making representation against the proposed order.”
8. In view of the above, the only relief that can be granted in these writ petitions is that the respondent No.2 is directed to consider the representation and documents produced by the petitioners and respondent No.3 and after giving opportunities to both the parties, shall pass the final order under Section 76-O of the said Act within two months from the date of receipt of copy of this order.
9. With the above observation, the writ petitions are disposed of.
Sd/- JUDGE DM